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Nunez v. New York State Department of Corrections and Community Supervision

United States District Court, S.D. New York

July 31, 2015

ROSA A. NUNEZ, Plaintiff,


JESSE M. FURMAN, District Judge.

Plaintiff Rosa Nunez ("Plaintiff"), proceeding pro se, brings this action against her employer, the New York State Department of Corrections and Community Supervision ("DOCCS"), and her former supervisor, Joseph Lima (collectively, "Defendants"), pursuant to Title VII of the Civil Rights Act of 1964 ("Title VII"), Title 42, United States Code, Section 2000e et seq., the New York State Human Rights Law ("NYSHRL"), N.Y. Exec. Law § 290 et seq., and the New York City Human Rights Law ("NYCHRL"), New York City Administrative Code, Section 8-101 et seq. [1] Plaintiff alleges, among other things, that Lima subjected her to unwanted romantic advances and that, when she refused to engage with him socially and later filed an internal complaint, Lima and her co-workers both retaliated against her and created a hostile work environment. Defendants move to dismiss the Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. For the reasons that follow, Defendants' motion is GRANTED in part and DENIED in part.


The following facts, taken from the Complaint and documents attached thereto, are assumed to be true for the purposes of Defendants' motion to dismiss. See Karmely v. Wertheimer, 737 F.3d 197, 199 (2d Cir. 2013). Plaintiff was hired by DOCCS (which, at that time, was known as the New York State Division of Parole) in 1992. (Am. Compl. ¶ 17). Around the time of the events giving rise to this lawsuit, Plaintiff was a parole officer; her main responsibilities included supervising a caseload of paroled sex offenders and working closely in partnership with other parole officers. ( Id. ¶¶ 13, 18). Plaintiff alleges that she "was a responsible and reliable employee who often received praise for her good work." ( Id. ¶ 19).

A. Lima's Overtures to Plaintiff

In September 2010, Lima was - and had been for many years - Plaintiff's supervisor. ( Id. ¶ 20). Around that time, he invited Plaintiff to see the movie "The Black Swan." ( Id. ). Plaintiff, believing Lima's request "be a friendly invitation from a colleague and not... a[n] invitation to go on a date, " nevertheless declined the invitation because she had heard that there was sexual content in the movie and did not feel that it was appropriate to see it with Lima. ( Id. ¶ 21). Lima "understood... Plaintiff's concerns, " but continued, over the next few months, to invite her to attend plays and movies with him, causing her discomfort because of their supervisor-supervisee relationship. ( Id. ¶¶ 21-22). In December 2010, after Lima insisted that "he only wanted company, " Plaintiff finally agreed to go to the movies with him - a decision that she asserts was due to pressure she felt to accept his invitation because he was a supervisor. ( Id. ¶ 22). Even then, Plaintiff still did not have any reason to suspect any romantic intention in the invitations, as Lima "had always been respectful towards her in the past" and was married. ( Id. ¶ 23).

From January to May 2011, Plaintiff and Lima went on four outings together, during which Lima did not make any romantic advances towards Plaintiff. ( Id. ¶¶ 23-24). On or about May 11, 2011, however, Lima invited Plaintiff to lunch and declared that he was "infatuated" with her. ( Id. ¶ 26). Plaintiff told Lima that she did not reciprocate his feelings and that, in light of his confessions, she did not feel comfortable going on social outings alone with him. ( Id. ¶¶ 27-28). Lima asked Plaintiff is she intended to sue him; she responded that she would proceed with a lawsuit only if Lima continued to pursue her, knowing that she was not interested. ( Id. ¶ 29). Despite that conversation, Lima continued to ask Plaintiff to attend plays with him, and became more and more insistent with each invitation. ( Id. ¶ 30). Indeed, on or about June 20, 2012, Lima called Plaintiff and told her that, if she did not go on two dates with him, he would make her perform the unnecessary and time-consuming task of going to a Verizon store and transferring her contacts to a new, state-issued Blackberry mobile phone. ( Id. ¶ 31). Plaintiff declined to go out with Lima despite his threat, and began to avoid contact with Lima except with respect to work-related issues. ( Id. ). It was at this point, Plaintiff alleges, that Lima began retaliating against her because she rejected his advances. ( Id. ¶ 32).

B. Lima's Retaliatory Conduct Towards Plaintiff

Plaintiff alleges that Lima retaliated against her on many occasions, mostly by increasing her workload, changing her work environment, and giving her less favorable assignments. In September 2012, for example, Lima transferred Plaintiff from a standard two-person partnership - with someone with whom she had a good working relationship - to a three-person partnership. ( Id. ¶¶ 33-34). When she complained, however, Lima transferred Plaintiff back to the two-person arrangement. ( Id. ¶ 34).) Additionally, when a parole officer is on leave, it is standard practice for a supervisor to split his or her caseload in assigning coverage, but when Plaintiff's partner was on leave and performing only light duty for five months - from November 2012 to April 2013 - Lima, along with Plaintiff's immediate supervisor, Senior Parole Officer ("SPO") Miguel Medina, refused to distribute her partner's caseload, forcing Plaintiff "to take on additional reports and do extra paperwork for two very intensive mental health caseloads." ( Id. ¶ 35).

Lima's retaliation towards Plaintiff, she alleges, also affected her ability to transition from one type of caseload to another - as well as the cases she was assigned before and after she transitioned. Plaintiff initially requested a Special Offenders Unit ("SOU") caseload in January 2013, but Lima offered her only a shelter caseload (presumably involving supervising parolees in homeless shelters around New York City), which was less desirable and consisted of cases she was not accustomed to covering. ( Id. ¶ 50). Plaintiff decided to postpone accepting the caseload until a non-shelter caseload became available - which took five months, until June 2013, despite the fact that less senior colleagues had SOU caseloads comprised of parolees in regular housing. ( Id. ¶¶ 50, 65). While she awaited her SOU assignment, Plaintiff was assigned to manage a parolee who had displayed repeated verbal and physical hostility towards women. ( Id. ¶ 66). (When Plaintiff informed Medina and another SPO of the perceived risk she faced in being assigned the case, however, the case was reassigned. ( Id. ).) She also alleges that she was intentionally reassigned cases that, largely because of the timing of the transfer or because of continuing obligations on the part of the parolee to report to the parole officer previously assigned to the case, would make Plaintiff appear to be noncompliant with the required monthly home visits. ( Id. ¶¶ 67-68, 130-31). When Plaintiff requested a copy of a printout of her compliance with monthly visits from Lima and SPO Medina (presumably to ensure that she had not been incorrectly found noncompliant with a monthly visit that was the responsibility of another parole officer), her request was denied without explanation. ( Id. ¶¶ 68-69).

Additionally, Plaintiff alleges that, before and after she took on an SOU caseload, Lima increased her workload, in ways that deviated from standard practice. Lima, for example, repeatedly reassigned Plaintiff cases that were more difficult and covered precincts with which Plaintiff was less familiar, including cases that had been managed by Parole Officer ("PO") Tiffany Grissom rather than by PO David Segal, who covered cases in Plaintiff's preferred precinct. ( See id. ¶¶ 36-39, 41-49). Plaintiff alleges that Lima's decisions not only forced her to handle cases that she otherwise would not have covered, but also caused her to "los[e] out on potential income, " apparently by depriving her of overtime she would have earned had she been assigned PO Segal's cases. ( Id. ¶¶ 41-43). (At another point in the Complaint, however, Plaintiff appears to allege that DOCCS would not have had to incur overtime expenses if it had assigned PO Segal's cases to her. ( Id. ¶ 49).) Plaintiff acknowledges that Lima assigned many of the cases she received in unfamiliar precincts because he had reorganized the assignment of precincts for the SOU, but alleges that Lima - who initiated this reorganization as Plaintiff took on a SOU caseload - deliberately "changed the coverage of territory... so that the precincts Plaintiff did not normally cover and was not obligated to cover due to her seniority, were now included in her area of coverage." ( Id. ¶¶ 44-46). She also alleges that Lima did not review PO Grissom's cases before assigning them to her, contrary to standard practice; Plaintiff informed Lima that she believed that this was "yet another form of retaliation towards her and requested that [Lima] please stop immediately, since Plaintiff was hoping to avoid filing a formal complaint." ( Id. ¶¶ 38, 48).

Further, Plaintiff alleges that the SOU cases Lima assigned her "had major problems." ( Id. ¶¶ 51-54). Plaintiff asserts, for example, that many of the offenders whose cases she was assigned had a pre-delinquent status, resided outside of Plaintiff's coverage area, were not referred to sex offender treatment despite being under supervision for over a year, or were not living in housing compliant with the Sexual Assault Reform Act. ( Id. ¶¶ 51, 53). When Plaintiff expressed concern to Lima about these problematic cases, he replied that they had been assigned to her as part of a "bulk transfer, " contradicting a prior statement that he would review cases before assigning them to her. ( Id. ¶ 52). Plaintiff further alleges that, even after she had been assigned to the SOU, Lima deliberately assigned her mental health cases - cases she had handled under her old caseload. ( Id. ¶ 55).

On July 11, 2013, Plaintiff initiated an internal DOCCS investigation of Lima's treatment of her and, on July 23, 2013, filed a formal complaint with the DOCCS Office of Diversity Management. ( Id., Ex. 1 at 49, 58-63). Plaintiff alleges that, around the same time, Lima subjected her to other retaliatory acts, including reassigning her cubicle (and, it should be noted, other parole officers' cubicles) to accommodate case managers visiting the office once a week and directing his secretary to order Plaintiff to move her car in order to accompany an SPO visiting the office. (Am. Compl. ¶¶ 56-58).

On October 2, 2013, Plaintiff also filed a complaint with the New York State Division of Human Rights ("NYSDHR"), accusing Lima of sexual harassment and retaliation. ( Id., Ex. 1 at 30-42). In the year that followed, Lima required Plaintiff to attend a morning training session instead of an afternoon session (he had also prevented Plaintiff from attending the training of her choice several months earlier, by saying a session was full); denied Plaintiff's request for reimbursement for travel expenses, the first time that this had occurred to Plaintiff in her time working at DOCCS; manipulated Plaintiff's schedule by, among other things, not preventing his secretary from scheduling her to work at the same time as the department's monthly meetings; and - with SPO Medina - did not timely process a report she filed in one of her cases, which made it appear as if she had been tardy in submitting the report in the first instance. ( Id. ¶¶ 40, 59-60, 62-64, 70-72).

C. Retaliation and Hostile Treatment from Plaintiff's Co-Workers

In addition to her allegations against Lima, Plaintiff alleges that many of her other co-workers - none of whom are named as Defendants in this suit - subjected her to retaliation and a hostile work environment. She alleges, for example, that her relationship with SPO Medina, her supervisor, deteriorated once she indicated that she was going to file a formal complaint against Lima and that SPO Medina took actions after she filed a complaint that indicated he "had an issue" with her. ( Id. ¶¶ 76-78). She alleges, for example, that SPO Medina transferred Plaintiff, without telling her, the case of a parolee who had absconded and recently been caught, shortly before she left for annual leave; intentionally held on to a check past due to Plaintiff while she was on leave, insisting that he would drop it off to her personally rather than mailing it; waited a week to collect signatures for a get-well card after Plaintiff returned from leave, which allegedly departed from the courtesy shown to other parole officers in similar circumstances; and generally was unhelpful and nonresponsive when she confronted him with a scheduling or case-specific issue. ( Id. ¶¶ 82-83, 86, 88-90). Plaintiff also alleges that, after she reported to SPO Medina that a female parole officer was romantically involved with a female offender that Plaintiff had previously supervised, he made disparaging comments implying that Plaintiff was a lesbian and that she was the parole officer romantically involved with the parolee, making her "strongly believe" that SPO Medina had initiated a Bureau of Special Services investigation of her. ( Id. ¶¶ 79-81).

Plaintiff contends that, around the same time, she also began experiencing hostility from PO Grissom - hostility that she attributes to "major issues" she encountered in the cases that Lima had transferred from PO Grissom to her. After Plaintiff discovered, for example, that one offender formerly assigned to PO Grissom had not been living in his approved residence for over three months, Plaintiff "had to complain" - and faced hostility and gossip as a result. ( Id. ¶¶ 93-95). PO Grissom spread rumors about Plaintiff and her behavior at social events; asked "Is this sexual harassment?" when referring to a video of Plaintiff dancing with Lima at a work event in 2011; and made veiled threats toward Plaintiff, including by stating "You will see when she finds smoke on her car." ( Id. ¶¶ 97-100).

Further, Plaintiff alleges that several other co-workers subjected her to disparaging comments - some, again, that Plaintiff attributes to her decision to initiate a complaint against Lima. PO Michael Lesser, for example, made a disapproving statement about false accusations in the sexual assault context, a statement that Plaintiff believes was directed at her. ( Id. ¶ 106). Plaintiff also alleges that PO Lesser "constantly spoke negatively about Plaintiff to other colleagues..., ignored Plaintiff on several occasions, rarely spoke to her and often did not reply to her greetings." ( Id. ¶ 109). PO Segal falsely claimed to other co-workers that he had "been intimate" with Plaintiff (a claim that he also made with respect to other female co-workers), which she alleges was "a deliberate act to destroy her good name." ( Id. ¶¶ 113-14). In April 2014, ...

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